Leah talks with Lee Kovarsky of the Capital Punishment Center at the University of Texas about the Supreme Court’s treatment of death penalty cases.  Before 2020, there hadn’t been a federal execution since 2003. In the last six months of the Trump presidency, there were 13. Lee tells us how that came to be, and what the justices’ writings signal for future death penalty cases.

• Read Lee’s article, “The Trump Executions,” in the University of Texas Law Review

TRANSCRIPT

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Show Intro Mr. Chief Justice, please forward. There is no jail for one argument. Argued against two beautiful ladies like this. They’re going to have the last word. She spoke not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet, find X.

Leah Litman Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. I’m your host for today, Leah Litman. And today I have a special episode that is about a recurring issue on the court’s docket capital cases. And I’m delighted to be joined by one of the country’s foremost experts on capital litigation, post-conviction proceedings and more Professor Lee Kovarsky at the University of Texas Law School. Welcome to the show, Lee.

Lee Kovarsky Thanks for having me.

Leah Litman So, Professor Kovasky is the Bryant Smith chair in law and co-director of the Capital Punishment Center at the University of Texas. He has also worked on several, many dozens of death penalty matters in various courts throughout the United States, including through the Texas Defender Service. He argued and won an important habeas case. Ayestas versus Davis decided in 2018 that ensured that habeas petitioners who were sentenced to death had access to the federal funding that was authorized by statute for federal court proceedings, challenging the effectiveness of their counsel. On this show, we’ve talked about the court’s treatment of capital cases and some of the justices views about capital litigation. These are issues that I mentioned that regularly come before the court and the justices views on capital litigation also seem to influence their views Eighth Amendment, prohibition on cruel and unusual punishment, or various procedural rules about post-conviction review. So maybe we can start with some basics. How do capital cases make their way to the Supreme Court?

Lee Kovarsky Capital cases make their way up to the court in much the same way that any criminal case makes its way up to the court with a couple of different nuances. The case can go up on direct review of a state conviction and capital sentence. It can go up on review of a state post-conviction disposition, or it can go up on a review of federal habeas disposition. If it’s a federal capital sentence and it can go up on direct review of the death sentence from the federal trial court, and then it can go up on review of the federal post-conviction proceeding, which is under 28 U.S.C. 2255. And then, of course, capital punishment is an area that’s replete with litigation overstays. And so there is a lot of activity on the shadow docket or the emergency docket. If you’re one of those people.

Leah Litman We will be talking about one of those people, as you put it, throughout this episode. But just to kind of unpack, you know, the last part of what you said, the emergency docket regarding stays, you know, something that I didn’t realize before I clerked at the court was just the sheer volume of stays and capital litigation, you know, that the court oversaw. Because basically what happens is anytime there’s an execution that’s scheduled in the United States, there’s actually a permanent employee at the court who’s known as the death clerk who oversees and is in charge of monitoring all of these executions and being in touch with lawyers to figure out if those lawyers might ask the Supreme Court for what’s known as a stay. And a stay puts on hold the ordered execution nominally to allow, you know, the person who has been sentenced to death to pursue legal claims about their execution that need to be resolved before the execution is carried out. So I guess that kind of like begs the question about like why, you know, do these challenges to death sentences in capital cases kind of like come in or come up as an execution date is set up and, you know, not well before.

Lee Kovarsky Yeah. And before I go into why there’s so much what I call warrant litigation, that just means litigation under a death warrant, which is the type of last minute litigation you’re talking about. I do want to send a shout out to the deaf clerks, Mara Silver and Danny Bickle. They are fantastic people who over the years have, you know, helped me through some some really difficult stuff. I mean, obviously staying neutral with respect to the case. But I had warrant litigation going on, you know, as my wife was having our second child. And what they did for me at that time was something I’ll never forget. Anyways, so why is there so much warrant litigation? Why are there so many headlines about this prisoner’s saught this stay, the night of the execution and so forth? I think that really confuses people. Well, some of it has to do with like the type of claims that are being litigated. So some claims just aren’t ripe until the state sets an execution date. So, for example, if you’re challenging the method of execution, which a lot of these challenges do, you don’t know what method the state is going to use to kill you until the state announces when it’s going to do that. And so those claims don’t ripen until that time. And then, you know, they generally take longer to work their way through the courts than there is between when the execution date is set and when it’s supposed to take place.

Leah Litman And just to like, unpack and like spell out ripeness for our listeners who might not be lawyers, all it means is when a claim isn’t ripe, it’s not ready for a federal court to review it yet. And so, like, as Lee is saying, like, if you want to challenge the method, you know that the state is executing you, that claim is’nt ready for a court’s review until you know how a state plans to execute you.

Lee Kovarsky Yeah, it’s like a it’s one of those, like, legal words, but it’s pretty intuitive, right? Like, you can’t say you’re not allowed to kill me that way until you know the way that the state intends to try to kill you. Similarly, there’s sort of claim that we sometimes call forward claims, but they’re claims that basically you’re not sane at the moment of execution. And like the challenges to the method of execution, you can’t really make an argument about what your mental functioning is at the time of the execution, until the time of execution is ascertained, so that litigation isn’t undertaken till later. Now, I think that stuff is pretty intuitive. What I think a lot of people don’t realize and what even a lot of lawyers don’t realize is that there’s lots of claims based on new facts and new law because of the way that we structure indigent representation. And what I mean by that is a kind of two related things. First, a lot of times people are just like unrepresented between when their first round of what we call federal habeas litigation is finished and then when the state sets an execution date. And so all of those claims that become available because there’s some new fact that is ascertainable or because there’s some new legal rule, if those things develop during that period when the prisoner is unrepresented before the execution date set, those things aren’t going to be detected until the execution date set, there’s a lawyer looking at the case and then they start litigating those. And then the other thing having to do with the structure of indigent representation that produces all of this warrant litigation is I don’t think people realize how much of this litigation draws from a pool of death penalty experts who are just sort of like careening without sleep from case to case, you know, trying to put out fire after fire after fire. And this pool of death penalty experts can’t possibly know the details of every case in the country. Right. So they have to triage their attention. Well, how do they triage their attention? They direct their attention to the cases that get execution dates. The setting of the execution date is really the moment in which the person gets the lawyer and also the professional death penalty community directs their attention there. And that’s because the state generally hasn’t funded indigent representation effectively up until that time. And so that accounts for a lot of the reason why you see so much warrant litigation, you know, so all of this goes back to the same basic problem. If we were serious about indigent representation earlier in the process, we wouldn’t have these kinds of issues show up at the 11th hour.

Leah Litman Yeah. And just to give an example of kind of the first phenomenon that you identified, which is like new facts or new law can develop between the point at which someone is represented in their federal habeas proceedings and the moment at which, you know, a death warrant is signed. Imagine that you are someone who say was 17 years old when you were convicted and sentenced to death before the Supreme Court held in Roper versus Simmons, that juveniles cannot be sentenced to the death penalty. Like if that decision came down, you know, after your federal habeas proceedings had finished, but before your death warrant had been signed, that might be an example of a new rule that develops in a time during which you’re represented. Or, you know, there often might be like new facts or like new developments in forensic evidence. Like, let’s say, for example, there’s a new technique that’s developed in order to assess the reliability of, say, expert evidence regarding arsons or something like that, and that develops between the time you’re represented and when your death warrant is signed. So you don’t have a lawyer who can press that claim and collect the relevant experts up until the moment your death warrant is signed. Lots of different reasons why capital litigation ends up proceeding very close to the end of the case after a warrant has been signed. And it’s just not unusual for there to be last minute capital litigation. But some justices are extremely dismissive of what they see as last minute capital litigation and just hostile to it, even though it’s inevitably part of the process, given like the substance of constitutional limits on the death penalty and how states carry out executions. So I just wanted to play this one clip from, as you say, one of these people. Justice Samuel Alito from the oral argument in Glossip versus GROSS, in which he characterizes what he perceives as going on in the death penalty bar.

Justice Samuel Alito Yeah. I mean, let’s be honest about what’s going on here. Executions could be carried out painlessly. There are many jurisdictions. There are jurisdictions in this country. There are jurisdictions abroad that allow assisted suicide. And I assume that those are carried out with little, if any, pain. Oklahoma and other states could carry out executions painlessly. Now, this court has held that the death penalty is constitutional. It’s controversial as a constitutional matter. It certainly is controversial as a policy matter. Those who oppose the death penalty are free to try to persuade legislatures to abolish the death penalty. Some of those efforts have been successful. They’re free to ask this court to overrule the death penalty. But until that occurs, is it appropriate for the judiciary to countenance what amounts to a guerrilla war against the death penalty, which consists of efforts to make it impossible for the states to obtain drugs that could be used to carry out capital punishment with little, if any, pain. And so the states are reduced to using drugs like this one, which give rise to disputes about whether, in fact, every possibility of pain is eliminated. Now, what is your response to that?

Leah Litman And, you know, less people think this is just Sam Alito free associating and it has no connection to the law that develops. Justice Alito has written in orders denying stays in capital cases like this line from Murphy versus Collier in 2019, quote, inexcusably late stay applications present a recurring and important problem. So you know, again, their perception about, well, it’s somehow the death penalty litigants fault that this litigation is happening last minute appears to like influence, you know, what they are doing in these cases. And the other examples of that that you can think of where the perceived problem with death penalty litigation is like leading some justices to modulate their views accordingly or decide kind of cases on that basis.

Lee Kovarsky A lot of time justices are savvy enough not to put that in a super text of the opinion. Now, sometimes it it seeps through. And I would say the issue is gone well beyond the Supreme Court justices doing that. But they’re really setting a norm for federal judges at all levels of judicial hierarchy that if you see a claim that feels late to you, you should hunt for evidence that the prisoner or the lawyer wasn’t diligent. I mean, the problem is that unless you’re looking really carefully at the case history, you’re going to be able to tell yourself some story as to why this claim could have been brought two weeks earlier. And you actually see this play out over and over and over again with the federal executions that happened during the last six months of the Trump presidency, where you see lower courts accusing lawyers and prisoners of diligence, where, if you like, peek beneath the hood, what’s really happening is like the state isn’t seeking a death date until the very end and there’s litigation already pending. So it looks like all this litigation was undertaken at the 11th hour, but it only feels that way because that’s when the state sought the death date. You know, stuff like that. You know, in any piece of litigation, it’s going to be easy to pick out a window of time and say, like, Oh, during that three month period, the defendant was sitting on their hands when they could have been rushing around to Kinkos and to the courthouse. And, you know, for that reason, we’re going to deny what might otherwise be a claim upon which we would lavish more judicial resources.

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Leah Litman So that really is a perfect segway to what will be the focus of this episode, which is the wonderful article that Lee wrote that was published in the Texas Law Review. It is called The Trump Executions, and it documents, you know, a series of events we discuss on the podcast and have alluded to repeatedly, but we haven’t had a chance to do an in-depth retrospective on it. So now is the time. The focus of the article is on former President Trump and specifically outgoing President Trump’s decision to resume the federal death penalty and actually carry out somewhat legally dubious executions in the waning days of his administration, even after President Biden had been elected. And President Biden had, of course, promised to reinstate a moratorium on federal executions. So let’s just go with like a little background about the federal death penalty. Like before, you know, President Trump decided to make the death penalty great again. Like when was the death penalty last used and when did President Trump decide to bring it back?

Lee Kovarsky There was a federal execution in 1963. Then there wasn’t another one until 2001. There were two in 2001 and there was one in 2003. So there’s this like volley of three executions in the first couple of years of the Bush two administration, one of which is Timothy McVeigh, who’s the mastermind of the Oklahoma City bombing. The prosecutor on this case is Merrick Garland.

Leah Litman Merrick Garland.

Lee Kovarsky And then there’s no federal executions until this tranche of executions that the Trump administration undertakes during that, basically like the last six months that he’s in office. And the reason that happens is because there’s a sort of a confluence of extraordinary political and bureaucratic will to make those happen. I think what most people don’t realize, what distinguishes the death penalty from a lot of other punishments is that like if your sentenced to a term of years, they kind of send you to prison and then you’re there. And then the sentence is like fairly easy to administer. I mean, I don’t mean to diminish what correctional officers do, but with the death penalty, you know, in order to get from the sentence to the actual execution, there’s actually a lot of intervening bureaucratic and political hurdles that you have to pass, like different prosecutorial officials have to make, you know, decisions, basically opting in to the next step. And so if at any step along the way that bureaucratic or political will is lacking, then, you know, the president will just basically die in jail. And it looks like kind of like that was what’s going to happen to the people on federal death row at Terre Haute until Trump wins and Jeff Sessions sweeps in to, you know, DOJ in 2017. And one of Sessions top priorities when he comes in is to nail down a lawful execution protocol and the lack of a lawful execution protocol, like basically a set of lethal injection drugs that they could use that complied with the Constitution and all the applicable federal statutes. That’s what was basically getting in the way of federal executions for a long time. And at the end of the Bush administration and the Obama administration, there just weren’t that interested in spending a bunch of resources figuring out how to find a lawful supply of lethal injection drug. So Sessions comes in and he triggers this initiative within DOJ and the Bureau of Prisons to find those drugs and, you know, find not only to figure out what drugs they can use, but then find out where they can actually acquire them. Like they have to find a pharmacy that will provide the drugs for that purpose. Now, Jeff Sessions leaves and Bill Barr comes in, but Bill Barr isn’t as enthusiastic about the death penalty. Sessions is, and he’s a far superior bureaucrat. Barr comes in and they lock down what they believe to be a defensible supply of kind of Pentobarbital, which comes from what’s called a compounding pharmacy. And it is a pharmacy that basically, like, is in charge of it’s not as heavily regulated by the FDA because it makes like custom made medicine for individual patients. And the second they nail down that lawful supply of pentobarbital, they start announcing execution dates.

Leah Litman And so how did they pick? Because at this point, there hadn’t been federal executions for almost 20 years. Like how did they pick the people who were actually going to be subjected to the death penalty at that point?

Lee Kovarsky Yeah. You know, my brain is is is a little addled at this point. There’s like 81, 82, I can’t remember the exact number of people on death row at about this time. And much of what we know comes from the deposition of somebody named Brad Weinsheimer. And he is the like senior most official at DOJ at the time. And what he says in his deposition is that they identified 14 people on the row who did not have any litigation pending. That is, you know, their convictions and sentences were final. They were through their federal post-conviction proceedings and they weren’t part of any lethal injection litigation that was pending against the federal government. We know that Barr wanted to announce like a tranche of executions which have become known as the first five. These are the first five people that they announced. And he was in search of a criteria that he would use to say, these are the five people that are going to go first. They wanted these to be really bullet proof. And, you know, morbid, pun not intended. The criteria that they used was like what they said was the unique vulnerability of the victims, either young children or elderly folks. And those are the first five executions that you see the DOJ set in the summer of 2019 before the stays start.

Leah Litman Got it. Okay. So now they’ve identified the people who they plan to execute. They have assembled their 2019 execution protocol, the method by which they planned to execute the people. I guess now, let’s talk about some of the challenges that were raised once the federal government announced an intention to proceed with these executions, like what were the legal claims that persons who were sentenced to death and had their execution warrants signed? What were the legal claims that they were raising?

Lee Kovarsky When I look at all of this, I chunked it up into four categories. These four categories are categories that are sort of unique to federal death penalty litigation, because in all of these cases, there’s also a bunch of claims that we always see and warrant stays litigation about like my kind of my trial phase attorney was ineffective or the prosecution suppressed evidence that was material and exculpatory and so forth. So bracket those claims that appear in kind of every piece of post-conviction litigation for a second. And let’s talk about these four chunks that are unique to the federal death penalty litigation. So the first is lethal injection claims, basically. Right. There’s the constitutional challenge under the Eighth Amendment, which the court really just wants to shut down. I mean, the court hates those challenges as much as it hates anything in the death penalty context. Well, maybe as it hates habeus corp

Leah Litman Yeah. I mean, like the oral argument clip I played from Justice Alito was in one of those constitutional challenges to, you know, lethal injection protocol cases.

Lee Kovarsky Yeah. They just think that this is a stalling tactic and that, like, if the Constitution says that you’ve got.

Leah Litman Who cares about torture? Right?

Lee Kovarsky Yeah. Like, because if the Constitution says that you can kill someone, then, like, obviously you can’t violate some other constitutional provision in the course of killing somebody. It’s not it’s not the most compelling syllogism. So basically, there’s the Eighth Amendment litigation, and there’s litigation challenging the protocol under four statutes, the Federal Death Penalty Act, which I’m going to talk about in a second, the Controlled Substances Act, the Food, Drug and Cosmetic Act, and the Administrative Procedure Act. The most important of those is the Federal Death Penalty Act, FDPA, because that’s got something that’s called parity provision or that I call a parity provision, but it basically provides that the, quote, implementation of the federal death sentence shall be in the manner prescribed by the law of the state in which the sentence was imposed. Basically, if you know, there’s a federal death sentence of someone who was sentenced in federal court in Texas, then you’ve got to, quote, implement the death penalty in the way that’ll be implemented by the state of Texas. So, you know, there’s a bunch of challenges to the use of kind of penobarbital in states that have some other lethal injection method. And the court has to sort through those. Then there’s basically fights about using unprescribed drugs under the Food, Drug and Cosmetic Act and the Controlled Substances Act. And then some challenges to the way that the Bureau of Prisons changed the protocol under the administrative procedure. So all of those challenges are to the lethal injection protocol, you know, they all lose. Then there’s stuff that I call other FDPA litigation, and this is litigation over that same parity provision, but not over the execution protocol. Remember that the provision says that the implementation has to be the same, so that invited questions about whether you needed the same amount of notice that you had in the state, or whether the rules about which witnesses could attend the federal execution had to be the same as the rules about which witnesses could attend in the States. And then you had this provision called the designation provision, or again, I call it the designation provision. But if you think about the parity provision, it kind of presupposes that the federal death sentence is in a state that has the death penalty. Well, the drafters of the FDPA thought about the contingency that like, well, maybe there is a federal death sentence in a state that doesn’t have a death penalty. And they said in that case, then what the court is supposed to do is designate some other state for parody purposes, presumably the other state having a death penalty and then the federal implementation would then track that state. This ended up being pretty significant to what I think is probably one of the two most shocking slash troublesome moments of the federal executions, which is the Dustin Higgs execution, which is actually the last one before Trump leaves office. And what happened in Higgs was when Higgs is sentenced federally, he’s sentenced by a district court in Maryland, and Maryland has the death penalty. Right. So there was no designation made. But then Maryland abolishes the death penalty after that. And so by the time Higgs is, you know, receives his execution date, there’s no death penalty for the purposes of parity in Maryland. And honestly, DOJ doesn’t have its shit together and doesn’t think about this until kind of last minute.

Leah Litman The Trump DOJ didn’t have its shit together. You’re saying?

Lee Kovarsky Yeah. And they didn’t think about this problem until the last minute. So they kind of like filed this 11th hour piece of paper that’s like, Hey, Judge, why don’t you just amend the criminal sentence and reopen the judgment? And, you know, he kind of throws up his hands. He’s like, I don’t have any authority to do that. Like, I can’t reopen the judgment to designate some other state. I don’t know.

Leah Litman This is like a perfect example of this kind of asymmetric requirement of formalism in death penalty litigation where, you know, death penalty litigants and prisoners, they have to perfectly dot the I’s, cross the T’s, follow every procedure to its letter and its spirit read, you know, as stingy as possible. But the government can just file a motion, be like amend the judgment, which you definitely can’t do, but like we kind of need you to do so like, it’s cool, right?

Lee Kovarsky So what happens is, look, the judge, the trial court judge, the way I you know, I can’t do that. So this is the last execution, right? So all of the federal appeals courts have seen the Supreme Court like delivering this cascade of shadow docket orders, just basically being like go forward with the execution. So they get the idea. They set this like lightning briefing schedule for the appeal. The solicitor general’s office asked for cert before judgment, which is basically for those who aren’t familiar with this. It’s like a very, very, very, very unusual request. It asks the Supreme Court to act on the district court disposition before the appeals court has a chance to do anything with it. And the Supreme Court grants it. And all of my looking and and Steve Vladeck, who tracks these things much more closely than I do, concurs. We’ve never seen cert before judgment without plenary review in the Supreme Court. They just granted cert before judgment summarily reversed with an instruction to the District Court to designate Indiana for the purposes of parity and get on with it.

Leah Litman Just to be clear, the plenary disposition that Lee is talking about is, you know, usually when the court grants cert before judgment, will scheduled the case for argument, have full briefing and then like decide the matter, you know, on its full docket. You know, that’s what it did in the senses this litigation, that’s what it did in one of the cases challenging the sentencing guidelines like that’s usually what is required when it’s going to take this like very novel and unusual procedural step of basically serving as an appellate court.

Lee Kovarsky Yeah, it’s like the process that produces the, like, careful opinions that we’re accustomed to reading rather than these kind of like slapdash, you know, shadow docket opinions that, like, forget about authority and like forget to answer questions and stuff like that. So third category of litigation is what I call savings clause litigation. And the federal post-conviction statute has a provision that basically says, well, you know, if if this set of procedures isn’t adequate and effective for the purposes of testing your detention, then you can opt into like a more robust remedy. And the Seventh Circuit has this tested a lot in capital cases because Terre Haute is the location of a federal death row. And all of those challenges, you know, a bunch of the death row prisoners come in and they say, well, I can’t bring this claim or I can’t bring that claim under the traditional post-conviction statute. So I’m going to opt into this more robust remedy and a federal court. So I’ll shut the door on that. That’s the third category of litigation. The last category, which is actually pretty troubling, is the COVID litigation. Now, when it’s undertaken by the affected prisoners. Right. You get why the court just like isn’t that sympathetic to the prisoner saying, you know, like, my veins are going to blow or I’m going to have pulmonary edema or some like specific problem that makes their execution particularly problematic. I’m not saying I agree with any of those things, but if you put yourself in the shoes of a court that’s hostile to these method of execution claims, you can understand why they are not going to take those sorts of COVID based claims that seriously. But then you start seeing COVID litigation undertaken by other people, for instance, the family members, the victims that wanted to witness. The execution, couldn’t travel to Terre Haute to witness the execution because of COVID. And it produces this like weird spectacle where the federal government is like waving its hands around, saying, we’re undertaking these executions in the name of the victims, and then it won’t hit pause on the executions for the victims come. Then there’s COVID litigation undertaken by the non capital community at F.C.C., Terre Haute, which is where federal death row is F.C.C.. Terre Haute, a really big facility, has a lot of non-capital prisoners as well. And what they’ve learned, especially by the end of this execution sequence, is that every execution is a superspreader event. You got to fly a ton of people in. They got to, you know, all move through checkpoints. Then they got to sit in a room together for a really long time. And there were COVID outbreaks at the facility. So you had non-capital prisoners that don’t have anything to do with the death penalty process that’s being administered there saying, hey, hey, can you can you stop staging super spreader events at our facility because we’re going to get sick and die. This is before the vaccine is available and the court blows that off, too. So what a lot of this COVID litigation tells you is like, first of all, how unserious the like we’re doing this in the name of the victims. Thing is, I mean, there’s lots of clues that they’re not serious about that. Right. Like Bill Barr says, we’re doing this in the name of the victims, but doesn’t actually contact any of the victim’s families to let them know that they’re setting execution dates and the COVID. I mean, they’re willing to basically put the prisoners at the correctional facility at risk, the execution team at risk, and the victim’s family at risk just to have these executions that they’re willing to incur the risk of super spreader events just to avoid delay in these executions. And that is just how important these executions were symbolically to whatever political and bureaucratic community is pushing for them.

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Leah Litman So you mentioned both that the Supreme Court took the extraordinary step in the Dustin Higgs case of skipping over a court of appeals, ordering the district court to take this procedurally unique and like unprecedented and perhaps totally lawless and unauthorized move of just like, amending its judgment to designate another state. And you also mentioned that lower federal courts, and particularly the court of appeals, had picked up from some of the Supreme Court’s other actions in death penalty cases that the Supreme Court just wanted these executions to move forward. So other than the Dustin Higgs example. What’s another example of how the Supreme Court kind of like got involved in these Trump executions in order to ensure that they went forward?

Lee Kovarsky So I think what people need to understand about the Trump executions is there’s like a very extra legal factor driving the timing that is like not showing up in any of the opinions, but is probably the first thing that any judge deciding these is thinking about. And that is that everybody knows that once Trump leaves office, Biden’s going to stop having executions. And so every federal judge is eyeballing January 21st, 2021, either on one side, knowing that if the calendar pushes past that date and the execution isn’t going to happen, or on the other side, panicking that if the calendar pushes past that date and the execution isn’t happening. So what the Supreme Court is very clearly doing is patrolling what I call the inaugural margin, and that is they’re superintending the calendar and function of lower federal courts to make sure that whatever they’re doing isn’t going to push past that date. And by the end of the Trump executions, that becomes pretty transparent right there. You know, even if an appeals court is setting like a 12 day docket, if it goes to January 23rd, the Supreme Court’s not going to let that calendar proceed. The federal death penalty litigation is shot through with a lot of the same shadow docket problems that you see in the decisional law of other shadow docket scenarios. It’s just like really sloppy reasoning. So think back to the early cases about COVID restrictions. And I think that South Bay is the first case where, you know, there’s kind of like a shadow docket order and they say some stuff and then they say that the decisional language in that posture isn’t binding. And then for the next like five cases later, they say, like, why didn’t you follow the precedent in South Bay, which was supposed to be non precedential? And these are just like silly mistakes that are more deliberate and careful process would have exposed and the court would have taken care of. You see some of that in the shadow docket adjudication in the death cases, for example. Right. Barr v Lee, which is like the first really big opinion actually. It’s really the only opinion of substance that the Supreme Court opinion of substance that these executions produced. It’s an opinion about whether or not pentobarbital is a lawful execution protocol under the Eighth Amendment. And it just is like loaded with like omissions and like shoddy logic. Like, for example, Buckley v Preside is this like really kind of big deal case where the Supreme Court self perceives is like laying down like what the pleading requirements are going to be if you challenge the method of execution. And specifically what Buckley says is that if you’re challenging a method of execution, you have to put forward a feasible and readily implemented alternative. That is, you have to plead the instrument of your own demise. Then the rest of the test runs as a comparison between the execution method that you would get in the absence of relief, and then the alternative execution method that you proffer in your plea. Well, Barr v Lee forgets about all of this. Right. And it just sounds like the Supreme Court saying pentobarbital is always constitutional no matter what happens. And they talk about somewhat about the comparison between pentobarbital and like a firing squad, which was one of the alternatives that the federal prisoner, Lee pleaded. But they kind of forget to talk about the other alternative, which was just the use of like basically better medical protocols to reach the veins and stuff like that, some different cut down procedures and you know, like that’s just not a mistake the court would have made if it would have engaged in like a more orderly process of adjudication. But it was rushed.

Leah Litman It felt like what happened at the outset of the Trump execution litigation is at least some lower courts tried to pump the brakes and say, we’d like to kind of sort through these claims. You know, the Supreme Court got involved immediately in Barr v Lee, as you’re suggesting. And then once it did so again, you know, the lower federal courts basically picked up, know they want to ensure these claims are resolved before President Biden’s inauguration. And that’s kind of what ended up playing out, you know, on two tracks, both at the Supreme Court and in the appellate courts as well. So you’ve mentioned the shadow docket a few times. We’ve talked about it a lot on the show. I mean, like, what do we make of this either about, you know, the state of death penalty litigation, the shadow docket? Like, where is the problem? Is it in both? Is it a toxic combination of the two? Like what does this episode of, you know, again, the justices basically ensuring that all of these executions could be carried out before President Trump is thrown out of the office. Like what? What’s the problem with the system? Because it’s obvious there. I mean.

Lee Kovarsky So like, it’s really hard to say what to take away from this episode because usually, I mean, not this episode of Strict Scrutiny, this episode, this tranche of executions at the end of the Trump presidency, it is clear that the Supreme Court hates method of execution challenges, and it is going to find any excuse to say that prisoners are dilatory for bringing them. It also seems clear that at least in the death penalty context, the Supreme Court is going to be very hostile in situations where it looks like there is like the resistance or the problem with the implementation is coming from by executive abstention. And what I mean by that is like so take example the state of Texas, right? One of the things that has to happen for an execution go forward in Texas is that the local district attorney has to move for the execution in court. What that means effectively is if like the death sentence was 20 years ago and that district attorney supported the death penalty, and 20 years later, there’s a district attorney who doesn’t think that that particular person deserves the death penalty. They just won’t see an execution date. And it seems like the Supreme Court is going to be hostile to like that sort of abstention, because that’s what’s driving behind this inaugural margin idea, right. Like the Supreme Court knows that, like Biden’s not going to go through with these executions. And so it’s very wary of that executive abstention and it wants to make sure that this stuff is going to go off on the watch of the Trump administration. In terms of the shadow docket, specifically, some of the problems with the decisional law that comes out of the shadow docket death cases is typical of the decisional law that comes out of all shadow docket cases. But some of it is uniquely bad because in death penalty cases there really is a hard stop in a way there isn’t in other litigation. Like if they don’t get that opinion out by the time the execution is supposed to take place, then obviously they mooted the entire purpose of having the shadow docket. And so that will often produce opinions that are exaggerated versions of what we always see in the shadow docket cases. And as they are particularly threadbare, they are particularly vulnerable to serious mistakes. Now, some of that might be taken care of if jurisdictions, including the federal government, give a little bit more notice between like when they announced the execution date and when the execution is supposed to take place. And that would give appellate courts more time to give reasoned attention to a lot of these issues. You know, unfortunately, it requires not just the Supreme Court to move quickly. It requires the lower federal courts to move quickly. I mean, a lot of times litigation ends up jammed at the end, not because a prisoner has brought the claim late, but because the litigation has languished and languished in some lower court for a while. So the sort of problem and the spectacle we see at the end of the Trump administration, a sort of multi causal. And I think the most important implications are kind of for death penalty in the States. You know, you said at the beginning of broadcast, you said former President Trump, and then you called him something else. And in my head, I’m thinking like and maybe future President Trump, I guess there really is a question and I was a little bit more dismissive of it in the article than I should have been. Like we actually do see this scenario again because maybe Trump does come back into power and he will doubtlessly appoint an attorney general who, you know, heavily favors the death penalty and will try to move forward with other folks. It would be nice if we got more clear decisional law on the particular legal questions that, as you like, most people don’t realize that the D.C. Court of Appeals actually held that you can’t use unprescribed pentobarbital in federal executions. It’s just that because it was in the shadow docket emergency posture, the balance of harms didn’t cause courts to intervene to stop the execution. And to like to have some clarity around underlying legal questions, independent of whether you’re like for the death penalty in some abstract sense or not. It’d be great to have clarity around that stuff.

Leah Litman I was really struck by, you know, the first causal factor you identified in this, which is a hostility to executive discretion in death penalty. Just because to a listener, it might seem like that is hostility to mercy and also just very odd notions of judicial supremacy, where the court is basically asserting that it gets to decide, or at least like elected officials can’t decide, whether someone will receive the death penalty, which is really at odds with, you know, if you think about some of their decisions in habeas cases, saying we actually think the remedy for these constitutional violations are the remedy for claims of innocence is to go ask the executive branch for discretionary relief and now is basically withdrawing, you know, one of the mechanisms by which executive officers exercise that discretion and show mercy.

Lee Kovarsky And this is going to be a bigger and bigger issue and not to veer sort of unexpectedly into another area of your expertize. But, you know, one of the things I’ve flagged over and over on Twitter is you’re going to basically have district attorneys post Dobbs setting up sanctuary cities effectively where they’re going to, you know, not prosecute, they’re going to nullify criminal abortion laws and red states. And you’re going to see fights between the abstaining district attorney and some centralized law enforcement entity trying to take control of the law enforcement function that the D.A. isn’t exercising. Right. And so, you know, the sort of friction that develops between local district attorneys or local executives and then more centralized entities that feel like, you know, they have a superior claim to have exercise of discretion over whether to enforce criminal penalties, is going to be a fight that we see play out over a bunch of other contexts. And this feels like kind of like a warning shot or a preview of what that’s going to look like in some ways.

Leah Litman While I have you and you are a fellow habeas are kind of aficionado and post-conviction expert. I did want to ask between Brown versus Davenport, which we haven’t had a ton of time to talk about on the show, and Shin versus Ramirez, which we have. If you had to pick a worst, worse habeas case, which one would you pick and why?

Lee Kovarsky No doubt, Shin. So Brown versus Davenport, it’s like this itty bitty question that like I think felt more important 25 years ago than it is now. And it’s basically like, you know, you’ve got a harmless error inquiry. Do you use the strict harmless error or inquiry or do you use a less strict, harmless error or inquiry and then like amplify it through power, which like it’s an esoteric question, right? Yeah. But then it’s loaded with all of this stuff that signals really clearly that Justice Gorsuch is is hunting bigger game. And Justice Kagan calls him out for it. And he has this sort of like discredited history about how habeas was only for jurisdictional errors and convictions before Brown v  Allen. And then Felix Frankfurter reinvented habeas. And like here we are, right? It’s the opening shot, an attempt to reset the steady state of what habeas is about. And like that really sets me off when people give that historical account that has been debunked over and over again. But but I’m not going to say that Shin versus Ramirez is like the worst decision ever, but it’s like the gaslighting-est decision ever. In Martinez v Ryan, the Supreme Court basically says, Well, you know, if you forfeited a claim that you didn’t have a good trial lawyer, and the reason you forfeited that claim was because the next lawyer we gave you was no good. Then we’re going to hear that claim on the merits. We’re going to you know, you’re going to need to develop evidence to do that because the evidence that your crappy lawyer harmed you as evidence that sits outside of the trial record, you know, because by definition, the form that the harm takes is they didn’t develop a record. It’s literally like the definition of those claims, right? So Shin comes up and the court says, Well, when we said that the federal court would be able to decide those claims on the merits, we never thought that they would take evidence to do that, which is just like such a facially absurd thing to say. No, I get it.

Leah Litman So, so, so it is facially absurd. Except or unless you look at their death penalty cases and you realize that the Supreme Court is in the habit of deciding legal issues and claims without considering evidence or the record at all.

Lee Kovarsky Fair, fair. Another explanation, right. Is there you know, they have a they have a fixed amount of reversing stuff capital. And that capital is being reserved for Dobbs. God only knows what else. And so rather than just overturning Martinez, which is functionally what it does, right, like, it just totally neuters the ability to enforce the Sixth Amendment right to effective assistance of counsel. Instead, they style it as like, Oh, you can still have a forum to enforce. You just can’t introduce evidence of the enforcement moment, which is again, like absurd. But like maybe they just didn’t want to say, oh, we’re overturning Martinez because they’re husbanding capital.

Leah Litman I mean, they’re basically doing to Martinez or doing to the Sixth Amendment, like the final fight scene in Gladiator, where Russell Crowe is like stabbed several times and then like invade to fight with those stab wounds. And that’s not how we think about litigation and like how it should work. You know, ideally, you should be able to actually support your claims with evidence. But that did not seem to be.

Lee Kovarsky I definitely feel like Russell Crowe these days. You know, I’m doing a lot of Shin trainings and Shin.

Leah Litman I bet.

Lee Kovarsky Panels now and it’s like, what do we do next? There are some ways around potentially that I’m starting to see that that could give me a glimmer of hope until the next case gets to the Supreme Court.

Leah Litman Okay. Well, on that note, maybe anyone who is doing federal habeas litigation knows who to email and talk to as they are trying to make their way around Shin. One last question while we’re sounding an optimistic note, you know, for those people who might want to go into death penalty litigation or capital work, you know, any words of advice or encouragement you can offer to them?

Lee Kovarsky What I always tell my students is that death penalty litigation is like three tragedies. The first is obviously the death of the victim. The second is almost invariably the tragedies that unfold in terms of when you learn about the death sentence prisoner’s life, which is almost always like excruciating at an early age. And then, of course, the last tragedy is the execution. And it’s a very grueling process. And something that I really struggled with when I was younger was just like going to sleep. I mean, that, like, I would always tell myself the opportunity cost of me, like eating dinner or going to sleep or having a beer or whatever was like the exact number of hours I could instead spend on this case. And I was like constantly telling myself like, okay, you can never, ever stop. And I just like, wasn’t going to make it that way. Especially as you get older and you have families like you have to find a balance and you have to I mean, you have to learn how to lose because you’re going to lose early and often. And the other piece of advice I’d give is we have this romanticized idea about what federal habeas is in the 1960s, seventies, eighties, even nineties. It was the site of a lot of legal victory. But that’s not true anymore. Federal habeas is basically dead. And so if you want to work on behalf of death sentence prisoners, we all need to get serious about remedies in state court. At trial, we need to be serious about indigent defense. And we need to start funneling resources into state post-conviction proceedings, because that’s where the meaningful remedies.

Leah Litman Here here, two state courts. This has been also a somewhat recurring theme on this podcast. So thank you so much, Lee, for making time to discuss your article and post-conviction litigation with our listeners. It’s greatly appreciated.

Lee Kovarsky Thank you so much for having me.

Leah Litman Before we go, I wanted to give you a heads up about another great Crooked Media podcast America Dissected. 50 years ago this week, it was discovered that the United States government conducted the Tuskegee experiment that involved infecting hundreds of black men with syphilis, in order to better understand long term effects of the disease. This Week on America Dissected, Dr. Abdul El-Sayed is joined by Dr. Reuben Warren, director of the National Center for Bioethics and Research in Health Care at Tuskegee University. Together, they discuss the study’s long lasting implications on health inequities. You can listen to new episodes of America Dissected every Tuesday wherever you get your podcasts. Strict Scrutiny is a Crooked Media production. Hosted and executive produced by me Leah Litman, Melissa Murray and Kate Shaw. Produced and edited by Melody Rowell. Audio Engineering by Kyle Seglin. Music by Eddie Cooper. Production support from Michael Martinez, Sandy Girard and Ari Schwartz. Digital support from Amelia Montooth and Summer Intern support from Anoushka Chander.